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August 11, 1997


The opinion of the court was delivered by: Richard Mills, District Judge:


  "Every criminal defendant is privileged to testify in
  his own defense, or to refuse to do so. But that
  privilege cannot be construed to include the right to
  commit perjury." Harris v. New York, 401 U.S. 222,
  225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971).


In a previous Order, the Court stated that it would reserve ruling on the issue of whether the Government could use the tape recorded conversations between Defendant Michael R. Martin and Curtis Fleming for impeachment purposes until it had been determined that Defendant would testify on his own behalf. Defendant has now indicated that he will, in fact, testify on his own behalf. Furthermore, the Government has indicated that if Defendant's testimony differs from the statements which he made to Fleming, it intends to introduce the recorded conversations for impeachment purposes. Accordingly, this issue is now ripe for the Coiwt's consideration.*fn1

Defendant argues that the Government should not be allowed to use the tape recorded conversations for impeachment purposes because said statements were deliberately elicited by the Government in violation of his Sixth Amendment rights. Defendant asserts that the Government, by sending Fleming to secretly tape record conversations with him, violated his Sixth Amendment right to counsel. Moreover, Defendant claims that the statements which he made to Fleming were in no way voluntary and, therefore, cannot be used for impeachment purposes. Defendant asserts that without a waiver of the constitutional right to counsel which he had asserted, the use of the tape recorded conversations is impermissible. Accordingly, Defendant asks the Court to bar the use of the recorded statements as impeachment material.

The Government argues that the statements were recorded as a result of a legitimate investigation of Defendant's alleged attempts to obstruct justice in violation of 18 U.S.C. § 1503 and 1512. Although Defendant's statements could not be used in the Government's case-in-chief,*fn2 the Government asserts that the statements can be used for impeachment purposes. The Government claims that Defendant's statements were voluntarily made and that Defendant should not be able to hide behind the allegation that the Government illegally elicited his statements in order to testify untruthfully.*fn3 Accordingly, the Government asks the Court to deny Defendant Martin's motion.



The key inquiry with respect to the admission of inculpatory statements for the limited purpose of impeachment is the question of whether the statements were voluntary and not coerced. Oregon v. Hass, 420 U.S. 714, 722, 95 S.Ct. 1215, 1220-21, 43 L.Ed.2d 570 (1975); United States ex rel. Adkins v. Greer, 791 F.2d 590, 596 n. 5 (7th Cir. 1986) (holding that the key inquiry with respect to the admission of inculpatory statements as impeachment is the issue of voluntariness). Voluntary statements are admissible under some circumstances. E.g., Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (holding Miranda does not prohibit the use of a defendant's voluntary statements). However, involuntary statements are not admissible for any purpose. New Jersey v. Portash, 440 U.S. 450, 459, 99 S.Ct. 1292, 1297, 59 L.Ed.2d 501 (1979); Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 2416-17, 57 L.Ed.2d 290 (1978).

"A confession will be found to be voluntary only if the government can demonstrate that, under the totality of the circumstances and by a preponderance of the evidence, it was not secured by the government through psychological or physical intimidation, but rather was the product of a rational intellect and free will." United States v. D.F., 115 F.3d 413, 419 (7th Cir. 1997); United States v. Montgomery, 14 F.3d 1189, 1194 (7th Cir. 1994). Some sort of Governmental coercion is necessary in order to find that confession is not voluntary. Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 521-22, 93 L.Ed.2d 473 (1986); United States v. Haddon, 927 F.2d 942, 946 (7th Cir. 1991). Accordingly, there must be an "essential link between coercive activity of the State, on the one hand, and a resulting confession by a defendant, on the other." Connelly, 479 U.S. at 165, 107 S.Ct. at 521; D.F., 115 F.3d at 419.

In the "instant case, the Court finds that Defendant's statements were voluntary. Fleming recorded four separate telephone conversations with Defendant. of those conversations, Defendant initiated three of them.*fn4 Furthermore, there is no evidence on the tape to indicate that Fleming, on behalf of the Government, coerced Defendant into making any statements. Defendant was not under duress, physical intimidation, or psychological intimidation by the Government when he made the statements at issue. Accordingly, the Court finds that under the totality of the circumstances, Defendant's statements were the product of his rational intellect and free will.


However, the Court's inquiry does not end here. Defendant also argues that when Fleming tape recorded his conversations for the Government, he "deliberately elicited" incriminating statements from him in violation of his Sixth Amendment right to counsel. See Maine v. Moulton, 474 U.S. 159, 173-74, 106 S.Ct. 477, 485-86, 88 L.Ed.2d 481 (1985); United States v. Henry, 447 U.S. 264, 270, 100 S.Ct. 2183, 2186- 87, 65 L.Ed.2d 115 (1980); Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964). Defendant asserts that even though the Government knew that his right to counsel had attached, the Government, through Fleming, initiated an interrogation without the presence of his counsel. Therefore, because the Government violated his "core constitutional right," Defendant states that the Government should be barred from using his statements for impeachment purposes.

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S., Const Amend. VI. The U.S. Supreme Court has stated that the essence of the right to counsel is the opportunity to consult with an attorney and to have an attorney prepare a defense for trial. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932) A defendant's attorney is to be a "medium" between him and the Government. Moulton, 474 U.S. at 176, 106 S.Ct. at 487. "For the fruits of postindictment interrogations to be admissible in a prosecution's case in chief, the State must prove a voluntary, knowing, and intelligent relinquishment of the Sixth Amendment right ...

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